I dissent and vote to affirm the order. We are concerned with a matter of pleading which is entitled to every reasonable and fair intendment. The agreement in question may not, upon its face, be said to be void or illegal. The receiver in bankruptcy, an officer of the court, must be presumed to have performed his duty and not to have acted without authority. Moreover, it was he who received the consideration and the estate of the bankrupt was enriched to the extent thereof. We may not say that authority for the transaction in question was not secured from the court after application duly made. Moreover, the defendant here, a pledgee or vendee, should not be permitted to question the title of the pledgor or vendor in the absence of proof of illegality or a claim by a third party. If there were such in the transaction, it should have been raised by way of defense. The defendant has the money and he also has the hats.
Finch, J., concurs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with leave to the plaintiff to serve an amended complaint within twenty days from service of order upon payment of said costs.